parens patriae

The issue of age-based discrimination under s.15 of the Charter most usually arises in relation to older Canadians. There has been little discussion as to how the s. 15 right to equal protection and equal benefit of the law regardless of age applies to minors. This article seeks to counter this trend, in particular in relation to adolescents’ autonomy right to make medical treatment decisions. There is little serious consideration given to the question of age discrimination against adolescents who wish to refuse critical medical care because adolescents are perceived as different from adults, different not just because of their youth, but because of their lack of maturity; a minimum age for entitlement to rights protection is employed as a proxy for this immaturity.

This article disagrees with this historical understanding of the relationship between adolescents’ maturity and their ability to exercise their own legal rights. Age is not always an adequate proxy for a minor’s maturity to make her own decisions, which is why the use of age in this way, in certain cases, violates a minor’s s. 15 equality right. The first section of this article articulates this argument in relation to the right to refuse critical health care. I argue that the four governing legal doctrines — health care and consent legislation, the common law “mature minor” doctrine, child welfare legislation, and the parens patriae jurisdiction — together fail to respect adolescents’ decision-making maturity.

Section two uses the current state of the literature within psychology and medical philosophy to develop a more realistic assessment of what it means to make a mature decision. I argue that when an adolescent satisfies this reworked maturity standard, it infringes her s. 15 equality right if her treatment decision is overridden by legislation or the court. I propose a set of guidelines to determine the appropriateness of using age as a proxy for maturity in relation to a selection of legal doctrines, and when such usage violates a minor’s s. 15 equality right.

The third section explores broader issues raised by this argument. I argue that a proper understanding of adolescents’ decision-making maturity directly affects the constitutionality of other legal doctrines such as those governing access to birth control and abortion, and those that determine the legal age of criminal responsibility. My analysis suggests that we will have to rethink how we regard adolescents as citizens. Given that prospect, what impact will this have on our current models of how the law interacts with individual family members, and how the notion of equality impacts upon individual family members? I propose that the development of a new language of children’s rights is central to ensuring that minors are not wrongly denied the exercise of their Charter rights, as current legal doctrine permits in the case of adolescents who refuse critical health care.

This paper is published in (2005) 4 Journal of Law and Equality 84-102, and also available here.

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